Calcutta High Court (Appellete Side)
Pran Krishna Dey & Ors vs State Of West Bengal & Ors on 14 August, 2018
Author: Shekhar B. Saraf
Bench: Shekhar B. Saraf
1
14.08.
g.b. 2018 W. P. 2683 (W) of 2015
Ct. No.12
04 With
CAN 4287 of 2018
Pran Krishna Dey & Ors.
Vs
State of West Bengal & Ors.
Mr. Surajit Samanta
Mr. Biswajit Samanta
Mr. Pabitra Kumar Mandal
.......For the Petitioner
Mr. Ayan Banerjee
....For the State
1. In the present writ petition, three brothers
who are co-lessees in a property situated at
Bidhannagar have come up before this court
against the valuation carried out by the Additional
District Sub-Registrar, North 24 Parganas
(hereinafter referred to as the 'ADSR') on
December 18, 2014. They also challenged an
order passed by the ADSR on January 5, 2015.
2. The case of the writ petitioners is that two
of the writ petitioners being the writ petitioner
nos. 1 and 2 desire to gift their rights and
interests in the lease-hold property to their
brother who is the third writ petitioner. They
2
submit that permission for the same was granted
by the Urban Development Department,
Government of West Bengal by a letter dated
October 28, 2014. The same is delineated below:
-
"This office received application dated 04.08.2014 and its enclosures submitted by Smt. Pran Krishna Dey and Shri Kallol Kumar Dey, the mutated Co-lessee of Plot No.DA-85, Sector-I, Salt Lake, Kolkata- 700064 whereby remission was sought by the mutated Co-lessee for renouncing their 2/3rd (1/3rd each) share of the property (both the plot and building) to their brother Sri Gautam Dey by way of DEED of GIFT.
After careful consideration of the matter, the permission is hereby granted thus enabling to Sri Pran Krishna Dey and Shri Kallol Kumar Dey mutated Co-lessee of the plot for executing DEED of GIFT in favour of their brother Shri Gautam Dey. The DEED of GIFT should be executed and registered in the office of the Additional Dist. Sub- Registrar, Bidhannagar, Bikash Bhavan, Salt Lakt, Kolkata - 700091 as per the enclosed proforma 3 within ninety (90) days from the date of issue of this order. After registration of the deed a certified copy of the same should be submitted to this officer by the DONEE at the earliest for updating Government records."
3. Subsequent to such permission they submitted the deed of gift for valuation on November 19, 2014 wherein the valuation was done computing the stamp duty payable for a sum of Rs. 90,322/- under Schedule IA, Article 33 (i) of the Indian Stamp Act, 1899. However, when they went to submit the deed to the Registrar Office for execution on December 18, 2014, the ADSR did a U-turn and computed the stamp duty at Rs.12,57,206/- under Schedule I A, Article 63 of the Stamp Act. The increase in the stamp duty was on the basis that the deed of gift was nothing but an assignment that would incur the stamp duty payable for a Conveyance.
4. It is to be noted that the valuation once done by the ADSR is valid for a period of one month. However, in this case when the petitioners went for registration within the one- 4 month period, the valuation of the stamp duty was increased by the Registrar. No explanation for the same was forthcoming from the Registrar. The only explanation came by a letter dated January 5, 2015 wherein the ADSR informed the petitioners that they were not entitled to remission of stamp duty as they were not the members of the family of the original lessee.
5. The above letter does not come to the rescue of the ADSR as it is the case of the petitioners that they were never entitled to remission. It was their case that the deed of gift is required to be stamped as a deed of gift and not as a deed of assignment.
6. Mr. Ayan Banerjee, learned counsel for the respondent authorities submits that the contents of the draft deed show that there is a transfer of interest in the lease-hold property and accordingly, the same would amount to an assignment under the Stamp Act.
7. I am unable to agree with the stand taken by the respondent authority as a deed of gift may also transfer interest in a lease-hold property. 5 There is no law against gifting of one's interest in a leasehold property. In fact, in the present case specific permission has been obtained for the said purpose from the relevant authority. One has to simply examine whether the present transfer is being made to a member of a family as defined in the explanation of Article 33 of Schedule IA of the Stamp Act applicable to West Bengal. The explanation clearly includes 'brother'. Accordingly, the transfer is being made to a member of a family and therefore, the same would amount to a deed of gift and not an assignment. Article 33(i) clearly states that when a gift is made to a member of a family the rate of stamp duty would be one half of one per centum to the market value of the property which is the subject matter of the Gift. In contrast Article 33 (ii) states that when such a gift is made to any other person, the stamp duty would be as per conveyance applicable in the case of conveyance.
8. In view of the above as discussed by me, when a transfer is made of a right, title and interest in a property by a member of a family to 6 another member of the same family as defined in the explanation of Article 33 of Schedule IA of the Stamp Act, the duty would be applicable at one half of one per centum. In view of the same, I quash the valuation made on December 18, 2014 and direct the ADSR to make a fresh valuation keeping in mind the principles enunciated above within a period of two weeks from the date of communication of this order.
9. It is to be further noted that the permission granted by the Urban Development Department, Government of West Bengal on October 28, 2014 was for a period of 90 days. Since the petitioner was prevented for registering the same for the reasons stated above, it would be only fair to have the same permission extended for a period of 30 days, so that the registration can be completed by the petitioners. The petitioners are directed to present the deed of gift once again before the ADSR with the copy of this order.
10. The writ petition being W. P. No.2683 (W) of 2015 and the application being CAN 4287 of 2018 are disposed of without any order as to 7 costs.
(Shekhar B. Saraf, J.)